Elasali v. Sureride Charter
Filed 1/29/13 Elasali v. Sureride Charter CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
NOUR EDDINE ELASALI,
Plaintiff and Appellant,
v.
SURERIDE CHARTER, INC., et al.,
Defendants and Respondents.
D060630
(Super. Ct.
No.
37-2009-00084032-CU-CR-CTL)
APPEAL from
a judgment of the Superior Court
of
County, Joan M. Lewis, Judge.
Affirmed.
I.
INTRODUCTION
Nour Eddine Elasali filed this
action against respondents Sureride Charter, Inc. (Sureride), Rich Illes,
Lorenzo Ortiz, Robert Vint, and Lorraine Tokarz. Respondents filed a
pleadings. We are unable to discern the
precise nature of the claims asserted in the complaint or the grounds that
respondents raised in their motion for judgment on the pleadings, because
neither the complaint nor the motion for judgment on the pleadings is contained
in the record on appeal.
name="_ftnref1" title="">[1]
Respondents' request for judicial
notice in support of their motion for judgment on the pleadings is in the
record on appeal. Respondents contended
that the documents to be judicially noticed demonstrate that the issues in the
present case were adjudicated in a prior action, and that the claims in this
case are barred by the statute of
limitations. The trial court granted
respondents' request for judicial notice and granted respondents' motion for
judgment on the pleadings, without leave to amend. In its order, the court stated that the
judicially noticed documents demonstrated that Elasali's causes of action are
all time barred.
On appeal, Elasali contends that
the trial court erred in granting the motion for judgment on the pleadings, in
denying a motion to disqualify the trial judge, and in denying a motion for
change of venue. We affirm.
II.
FACTUAL AND
PROCEDURAL BACKGROUND
At some point prior to January, 7, 2010, Elasali filed a complaint against
respondents.
title="">[2] The action apparently arose from Elasali's
prior employment with Sureride.
On January 7, 2010, respondents filed an
answer. In their answer, respondents
alleged as an affirmative defense that Elasali's claims were barred by the
statute of limitations. Respondents
stated, "Elasali left employment with Sureride Charter Inc. on 2/23/2005. The statute of limitations for this type of
action is 2 years. This allegation took place almost 5 years ago." Respondents also stated, "This is the
third time the exact same complaint has been filed by Mr. Elasali."
In March
2011, Elasali filed a motion for change of venue and a separate motion to
disqualify the trial judge. On April 19, 2011, the trial judge
struck the motion to disqualify on the grounds that it was untimely, it had not
been properly served, and it stated no basis for disqualification. On April
22, 2011, the trial court denied the motion for change of
venue. The court ruled that Elasali had
not demonstrated any reason to believe that he could not obtain a fair trial in
San Diego County.
On or about July 11, 2011, respondents filed a motion for
judgment on the pleadings. Respondents
requested that the trial court take judicial notice of several pleadings from
other actions involving the parties, including a 2007 complaint filed in the
San Diego Superior Court by Elasali against several of the respondents; a June
16, 2006 document from the Department of Fair Employment & Housing entitled
Notice of Case Closure; a 2007 complaint filed in federal court by Elasali
against several of the respondents; various pleadings from the federal case;
and an August 28, 2007 letter from the United States Equal Opportunity
Commission to Elasali. Respondents
claimed that the documents demonstrated that Elasali's claims in this case are
time barred.
On August 5, 2011, the trial court granted respondents'
request for judicial notice and also granted respondents' motion for judgment
on the pleadings without leave to amend.
In its order, the court stated that the judicially noticed documents
demonstrate that Elasali's causes of action are all barred by the applicable
statutes of limitations.
Elasali timely appealed from the
trial court's August 5 ruling.
name="_ftnref4" title="">[4]
III.
DISCUSSION
Elasali has not
demonstrated that the trial court committed any reversible error
trial court erred in granting respondents' motion for judgment on the
pleadings, in denying his motion to disqualify the trial judge, and in denying
his motion for change of venue.
Certain fundamental rules govern this court's
consideration of Elasali's claims.
"As with any civil appeal, we must
is correct, [and] indulge every intendment and
. . . .
[Citations.]" (Steele v.
Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1251.) It is the burden of the
party challenging a judgment to provide an adequate
1122, 1140-1141.) Included within this
burden is the obligation to support factual arguments with
a citation to evidence in the appellate record. (People
v. Milosavljevic (2010) 183 Cal.App.4th 640, 654 (Milosavljevic).) An
appellant is also required to support any legal argument with legal authority
or analysis. (See People ex rel.
Reisig v. Acuna (2010) 182 Cal.App.4th 866, 879 [" 'An appellate brief
"should contain a legal argument with citation of authorities on the
points made. If none is furnished on a
particular point, the court may treat it as [forfeited], and pass it without
consideration." [Citation.]' [Citation.]"].) "Issues do not have a life of their own:
if they are not raised or supported by argument or citation to authority, [they
are] . . . waived.
[Citations.]" (Jones v.
Superior Court (1994) 26 Cal.App.4th 92, 99 (Jones).)
Elasali contends that the trial
court erred in granting respondents' motion for judgment on the pleadings
because respondents' answer was not timely filed and should have been
stricken. Elasali contends that
respondents "relied on a falsified and rolled back court stamp" in
filing their answer. This argument fails
because there is no evidence in the record demonstrating that respondents
obtained a false file stamp in filing their answer. (Milosavljevic,
supra, 183 Cal.App.4th at p. 654 [appellant must support factual arguments
with citation to evidence in the record].)
This argument also fails because we are unable to determine the
timeliness of respondents' answer.
Elasali has failed to include his complaint in the record, and there is
thus nothing in the record that indicates the date on which he filed his
complaint or effected service of process.
Without knowing when the complaint was filed, we have no way of
determining whether the answer was or was not timely filed. (Ketchum v. Moses, supra, 24 Cal.4th
at pp. 1140-1141 [appellant must provide adequate record to review claims].)
Elasali also contends that the
trial court erred in granting the motion for judgment on the pleadings on the
ground that his complaint is barred by the statute of limitations. We reject this argument because Elasali has
provided neither an intelligible legal argument in support of this contention (Jones,
supra, 26 Cal.App.4th at p. 99 [claims must be supported with reasoned
legal argument]), nor has he included respondents' motion for judgment on the
pleadings in the record. (Ketchum v.
Moses, supra, 24 Cal.4th at pp. 1140-1141.)
In
addition, Elasali contends that the trial court erred in denying his motion to
disqualify the trial judge. The law is
well established that the denial of a motion to disqualify a trial judge is not
cognizable on appeal, and may be addressed only through writ proceedings. (See, e.g., People v. Brown (1993) 6 Cal.4th 322, 333.) Finally, Elasali contends that the trial
court erred in denying his motion for change of venue. We reject this argument because Elasali has
failed to offer any legal argument that would support this contention.
99.)
Accordingly, we conclude that Elasali has not demonstrated that the trial
court committed any reversible error.
IV.
DISPOSITION
The
judgment is affirmed. Respondents are
entitled to costs on appeal.
AARON, J.
WE CONCUR:
McCONNELL,
P. J.
McDONALD,
J.
name="_ftn1" title="">[1] It
appears that Elasali filed a first amended complaint at some point in the trial
court proceedings. However, that
pleading is not contained in the record on appeal.
name="_ftn2" title="">
[2] Elasali
states in his brief, "Defendants
were served with the complaint and the summons on Dec. 23rd, 2009." Respondents state that Elasali filed the
"initial action" in this matter on February 24, 2009, and that
Elasali filed an amended complaint on December 10, 2009. None of these statements is supported by
citation to the record or by any document in the record.
